Tuesday, September 6, 2011

The DOJ's escalating criminalization of speech

Over the past several years, the Justice Department has increasingly attempted to criminalize what is clearly protected political speech by prosecuting numerous individuals (Muslims, needless to say) for disseminating political views the government dislikes or considers threatening. The latest episode emerged on Friday, when the FBI announced the arrest and indictment of Jubair Ahmad, a 24-year-old Pakistani legal resident living in Virginia, charged with "providing material support" to a designated Terrorist organization (Lashkar-e-Tayyiba (LeT)).

What is the "material support" he allegedly gave? He produced and uploaded a 5-minute video to YouTube featuring photographs of U.S. abuses in Abu Ghraib, video of armored trucks exploding after being hit by IEDs, prayer messages about "jihad" from LeT's leader, and -- according to the FBI's Affidavit -- "a number of terrorist logos." That, in turn, led the FBI agent who signed the affidavit to assert that "based on [his] training and experience, it is evident that the video . . . is designed as propaganda to develop support for LeT and to recruit jihadists to LeT." The FBI also claims Ahmad spoke with the son of an LeT leader about the contents of the video and had attended an LeT camp when he was a teenager in Pakistan. For the act of uploading that single YouTube video (and for denying that he did so when asked by the FBI agents who came to his home to interrogate him), he faces 23 years in prison.

Let's be very clear about the key point: the Constitution -- specifically the Free Speech clause of the First Amendment -- prohibits the U.S. Government from punishing someone for the political views they express, even if those views include the advocacy of violence against the U.S. and its leaders. One can dislike this legal fact. One can wish it were different. But it is the clear and unambiguous law, and has been since the Supreme Court's unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had publicly threatened violence against political officials in a speech.

In doing so, the Brandenberg Court struck down as unconstitutional an Ohio statute (under which the KKK leader was prosecuted) that made it a crime to "advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." Such advocacy -- please read the part in bold -- cannot be a crime because it is protected by the First Amendment. The crux of the Court's holding: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force" (emphasis added; for more on the First Amendment law protecting this right to advocate violence, see my discussion here).

To put this less abstractly, and as I've noted before, a person has -- and should and must have -- the absolute free speech right to advocate ideas such as this:

For decades, the U.S. Government has been engaging in violence and otherwise interfering in the Muslim world. Hundreds of thousands of innocent Muslim men, women and children have died as a result. There is no end in sight to this American assault on the Muslim world and those of its client states. Therefore, it is not only the right, but the duty, of Muslims to engage in violence against Americans as a means of self-defense and to deter further violence against Muslims. That is the only available means for fighting back against the world's greatest military superpower. The only alternative is continuing passive submission to this onslaught of violence aimed at Muslims.

One may find that idea objectionable or even repellent, but does anyone believe that someone should be prosecuted for writing that paragraph? Anyone who would favor prosecution for that doesn't understand or believe in the Constitution, as those ideas are pure political speech protected by the First Amendment, every bit as much as: the climate crisis now justifies violent attacks on polluting corporations; or capitalism is so destructive that the use of force in service of a Communist Revolution is compelled; or "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken" (Brandenberg); or such is the tyranny of the Crown that taking up arms against it is not merely a right but the duty of all American patriots (The American Revolution). The Jerusalem Post just fired one of its columnists, a Jewish leftist who wrote that Palestinian violence against Israel is "justified" because they have the "right to resist" the occupation; is he guilty of a crime of materially supporting Terrorism? Should Ward Churchill, widely accused of having justified the 9/11 attack (or Pat Robertson and Jerry Falwell, who did the same) have been indicted?

Judging from the description of Ahmad's video in the FBI Affidavit (Ahmad's YouTube account has been removed), the video in question does not go nearly as far as the clearly protected views referenced in the prior paragraph, as it does not explicitly advocate violence at all; indeed, it appears not to advocate that anyone do anything. Rather, the FBI believes it is evocative of such advocacy ("designed as propaganda to develop support for LeT"), which makes this prosecution even more troubling. Apparently, if you string together video and photographs (or words) in a certain way as to make the DOJ think that you're implicitly trying to "develop support" for a Terrorist group -- based on the political ideas you're expressing -- you risk decades of imprisonment. Is it possible to render the ostensible right of "free speech" more illusory than this?

This case is not an aberration; as indicated, prosecuting Muslims for pure political speech is an increasing weapon of the DOJ. In July, former Obama OLC official Marty Lederman analyzed the indictment of a 22-year-old former Penn State student for -- in the FBI's words -- "repeatedly using the Internet to promote violent jihad against Americans" by posting comments on a "jihadist" Internet forum including "a comment online that praised the [October, 2010] shootings" at the Pentagon and Marine Corps Museum and "a number of postings encouraging attacks within the United States." He also posted links to a bomb-making manual.

Regarding the part of the indictment based on "encouraging violent attacks," Lederman -- who, remember, was an Obama DOJ lawyer until very recently -- wrote: it "does not at first glance appear to be different from the sort of advocacy of unlawful conduct that is entitled to substantial First Amendment protection under the Brandenburg line of cases." As for linking to bomb-making materials, Lederman wrote: "the First Amendment generally protects the publication of publicly available information, even where there is a chance or a likelihood that one or more readers may put such information to dangerous, unlawful use." Lederman's discussion of the law and its applicability to that prosecution contains some caveats (and also raises some other barriers to these kinds of prosecutions), but he is clear that the aspect of the indictment based on the alleged advocacy and encouragement of violence in the name of jihad "would appear to be very vulnerable to a First Amendment challenge." That's government-lawyer-ese for: this prosecution is attempting to criminalize free political speech.

Perhaps the most extreme example of this trend is the fact that a Pakistani man in New York was prosecuted and then sentenced to almost six years in prison for doing nothing more than including a Hezbollah news channel in the package of cable channels he offered for sale to consumers in Brooklyn. On some perverse level, though, all of these individuals are lucky that they are being merely prosecuted rather than targeted with due-process-free assassination. As I documented last month, that is what is being done to U.S. citizen Anwar Awlaki due -- overwhelmingly if not exclusively -- to the U.S. Government's fear of his purely political views.

If the First Amendment was designed to do anything, it was designed to prevent the government from imprisoning people -- or killing them -- because of the political ideas they promote. Yet that is clearly what the Obama administration is doing with increasing frequency and aggression.

There is one last point that bears emphasis here. Numerous prominent politicians from both political parties -- Michael Mukasey, Howard Dean, Wes Clark, Tom Ridge, Ed Rendell, Fran Townsend, Rudy Giuliani, and many others -- have not only been enthusiasticaly promoting and advocating on behalf of a designated terrorist organization (MEK of Iran), but they have been receiving substantial amounts of cash from that Terrorist group as they do so. There is only one list of "designated Terrorist organizations" under the law, and MEK is every bit as much on that list as LeT or Al Qaeda are. Yet you will never, ever see those individuals being indicted by the Obama DOJ for their far more extensive -- and paid -- involvement with MEK than, for instance, Ahmad has with LeT. That's because: (1) the criminal law does not apply to politically powerful elites, only to ordinary citizens and residents (indeed, many of those MEK-shilling politicians cheer on broad and harsh application of the "material support" statute when applied to others), and (2) MEK is now devoted to fighting against a government disliked by the U.S. (Iran), so they've become (like Saddam Hussein when fighting Iran and bin Laden when fighting the Soviet Union) the Good Terrorists whom the U.S. likes and supports.

Nonetheless, MEK remains on the list of the designated Terrorist groups, and lending them material support -- which certainly includes paid shilling for them -- is every bit as criminal (at least) as the behavior in the above-discussed indictments. As usual, though, "Terrorism" means nothing other than what the U.S. Government wants it to mean at any given moment. The evisceration of the rule of law evidenced by this disparate treatment is as odious as the First Amendment assault itself.

UPDATE: A couple of commenters, such as abhisaha, argue that the government's prosecution of Ahmad has been made more plausible by last year's Supreme Court decision in Holder v. Humanitarian Law (which I wrote about, among other places, here, when I interviewed the plaintiffs' counsel). It's certainly not an unreasonable point, except (1) that case did not overrule or purport to overrule Brandenberg, which remains good law; and (2) Holder itself emphasized that "pure speech" remains protected. It did, however, allow that one "may not coordinate the speech with the groups on the terrorist list," though whether Ahmad did that is far from clear, as opposed to the MEK advocates, who quite likely would be found to have done so virtue of those payments (nor would it have any bearing on the indictment discussed by Lederman). In any event, Holder is easily one of the worst free speech decisions in several decades, and the fact that prosecutions are now being brought that hinge on a broad reading of it only underscore how relentless is the free speech assault from the Obama DOJ (which, naturally, vigorously advocated for the broad "material support" interpretation upheld in Holder).

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